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Title IX: Penn State could face another legal headache

The Education Department has not yet opened a formal Title IX inquiry as part of its broad-based investigation into Penn State, but hasn't ruled it out, said spokesman Justin Hamilton. He confirmed it is evaluating a request, from legal groups including the Women's Sports Foundation and the ACLU, to open a Title IX inquiry. Hamilton said the department, which is already investigating possible violations of the Clery Act for failing to report campus crimes, would investigate "all potential sexual offense issues" at Penn State, including the university's response to sexual assault cases unrelated to Sandusky's.

"I think there's a significant chance (the department) will act at some point, but my best instinct is they will most likely wait to see how some of the criminal investigations unfold first," said Peter Lake, an expert in higher education law at Stetson University College of Law in Florida. He added the department would do its own investigation and wouldn't rely on the Freeh Report, which was commissioned by the university, and whose findings have been vehemently criticized by former Penn State president Graham Spanier.

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The circumstances of the Penn State case would make it an unusual Title IX case — notably because Sandusky's victims weren't students or employees. But that doesn't get the university off the hook, says Nancy Hogshead-Makar, a professor at Florida Coastal School of Law and senior director of advocacy at the Women's Sports Foundation, one of the groups requesting the Title IX investigation. The law's language protects any "person" from harassment and seems to apply to anyone on campus (such as visiting sports teams), though the guidance is fuzzy.

But if the case is atypical in some ways, Hogshead-Makar and others argue that Title IX's purpose is to forestall the kind of atmosphere described in the Freeh Report: A janitor afraid to report witnessing a sexual assault, administrators quietly handling misconduct reports on their own, and an athletic program addressing discipline outside the normal university procedures. She contends the actions of Penn State's top administrators amount to precisely the kind of "deliberate indifference" that's a key legal standard in Title IX cases.

Lake, the Stetson professor, who had no involvement in the request to OCR, agreed that if the allegations in the Freeh report are true "there's enough evidence to suggest you had a culture that was at least ripe with the potential to do the kinds of things Title IX is designed to prevent."

Furthermore, the groups' request for a Title IX inquiry goes beyond the Sandusky case, for instance referencing a 2002 incident in which a Penn State football player suspended for two semesters was still allowed to play in a January bowl game. The group is asking Penn State to investigate if the university violated civil rights law by treating athletes differently from other students — acceptable for most infractions but explicitly prohibited by Title IX in sexual assault cases.